State v. Glass

• Decision Date: 21 May 1971
• Citation: 27 Ohio App.2d 214,56 O.O.2d 391,273 N.E.2d 893
• Parties: , 52 A.L.R.3d 691, 56 O.O.2d 391 The STATE of Ohio, Appellee, v. GLASS, Appellant.
• Court: Ohio Court of Appeals

Page 214

27 Ohio App.2d 214

273 N.E.2d 893, 52 A.L.R.3d 691, 56 O.O.2d 391

The STATE of Ohio, Appellee, v. GLASS, Appellant.

Court of Appeals of Ohio, Fourth District, Brown County.

May 21, 1971.

Syllabus by the Court

1. An excavation ceases to be a 'grave' under R.C. 2923.07 when the human remains originally placed

therein have decomposed to such a degree that they no longer meet the definition of a 'corpse' or 'dead body.'

2. The reenactment of a statute creates a presumption of legislative adoption of a previous judicial construction of such statute.

Angus B. Wilson, Pros. Atty., for appellee.

Gold, Rotatori, Messerman & Hanna, Cleveland, and Wilson, Wilson & Wilson, West Union, for appellant.

GRAY, Judge.

This cause is in this court on an appeal on questions of law from a judgment of the Court of Common Pleas of Brown County. Defendant was convicted by a three judge court of what is commonly know as 'grave robbing,' an offense denounced by R.C. § 2923.07 and also of the offense denounced by R.C. § 155.03 in that defendant without lawful authority did remove certain monuments, gravestones and grave markers from a cemetery.

Defendant, feeling aggrieved by this result of her trial, filed her notice of appeal and assigned the following errors:

'First Assignment of Error-The court erred in permitting the State to amend the indictment and the bill of particulars to allow the state to obtain a conviction on proof that the offenses charged in the indictment had occurred two years before the dates set forth in the indictment and in the bill of particulars.

'Second Assignment of Error-A delay of over two years in the initiation of prosecution operated to deny appellant a fair trial and to deprive her of rights guaranteed by due process of law.

'Third Assignment of Error-The court erred in excluding testimony which tended to demonstrate that appellant had not acted willfully in committing the acts charged in the indictment-testimony which was relevant to the question of guilt or innocence.

'Fourth Assignment of Error-The court erred in admitting hearsay testimony, over the objection of counsel for appellant, to the prejudice of appellant.

'Fifth Assignment of Error-The court erred in denying appellant's motion for judgment of acquittal at the conclusion of the state's case where the state had failed to offer any probative evidence tending to establish that appellant had acted willfully and unlawfully as charged in the indictment.

'Sixth Assignment of Error-By repeatedly reciting facts outside of the record, facts designed to demonstrate the prosecutor's personal knowledge of relevant information, the prosecutor acted in a manner to deny appellant a fair trial.

'Seventh Assignment of Error-The court erred in predicating conviction solely upon a finding that appellant had transferred bodies from one grave to another without fully complying with all applicable statutes where the court admitted and the evidence demonstrated that appellant had not acted willfully in violation of the law.'

Defendant is a real estate developer who had purchased a tract of approximately 60 acres of land in Huntington Township, Brown County. In developing the land, she ordered bulldozers to level land upon which a cemetery was located. The cemetery contained 21.6 poles of land and four graves. This land was excepted from the operation of her deed. There were three headstones and an 'ordinary big rock' that served as a headstone for one grave. It was determined that Alexander and Isabel Raines were buried there along with their cousin, Eleanor, who had an engraved headstone also.

It could not be determined which grave the 'ordinary big rock' marked. Defendant secured a health permit to remove the bodies. She employed a licensed undertaker to move the bodies to another cemetery and also paid for moving the stones.

She attempted to secure approval of the Huntington Township Trustees, but the township records do not disclose any action of approval of the project. Several heated sessions and confrontations occurred which no doubt were the moving forces that caused the matters to be taken before the grand jury.

The first count of the indictment was based upon the language of R.C. § 2923.07. The offense stated in that section is commonly known as 'grave robbing.'

A 'grave robber' is defined in Webster's Third New International Dictionary as 'one that breaks open a grave to obtain interred valuables or to remove the body (as for illicit dissection): a body snatcher: Ghoul.'

The caption of R.C. § 2923.07 (effective October 1, 1953) is 'Grave Robbing.'

Consideration of the title is especially proper where, as in Ohio, the title is prefixed by a solemn vote of the legislature passing the law, and there is a constitutional provision that no bill shall contain more than one subject, which shall be clearly expressed in the title.

The title of an act may be utilized for determining the purpose which induced the enactment of the law, which purpose may be considered in arriving at a correct interpretation of its terms.

In the interpretation of statutes, the titles thereof have been declared to be persuasive and entitled to great weight when one is determining their meaning.

Applying the law to the facts of this case, we are of the opinion that there is no evidence tending to prove the defendant is guilty of the offense of 'grave robbing.'

Ethel Raines Davis testified for the prosecution. Her testimony revealed that she was then 79 years old and that Alexander and Isabel Raines were her grandparents. These grandparents would have had to have been buried many years ago. Considering the state of the art of embalming at that time, the type of caskets and burial equipment then in use, and an elapse of time of approximately 125 years, the bodies would be entirely decomposed.

25A C.J.S. Dead Bodies § 1, p. 488, states in part as follows:

'The term 'dead body' is synonymous with the word 'corpse,' and as used in a legal sense means the body of a human being deprived of life. When the word 'body' is used to denote human remains it suggests a corporeal or tangible entity, and thus the terms 'body' and 'dead body' do not include the remains of a human body which has long since decomposed. (Citing Carter v. Zanesville, 59 Ohio St. 170, 52 N.E. 126.)'

In 1880, when the statute in question (R.S. § 7034, 77 Ohio Laws 85) was first enacted in present form, the caption of the section read: 'Penalty for grave robbing.'

When this statute became part of the General Code (Section 13391) the caption read 'Grave Robbing.'

Thus, we see that for over 90 years and after two major revisions of our code, the legislature acquiesced in the title and synopsis of the contents of this section. The meaning of the words 'corpse' and 'body' was interpreted by the Supreme Court in the case of Carter v. Zanesville (1898), 59 Ohio St. 170, 52 N.E. 126. It construed a related section of the code (R.S. § 3764) which read in part as follows:

'Any person, association or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations and companies, that had or have had unlawful possession of such corpse * * *.'

The court at page 178, 52 N.E. at page 127 of the opinion said:

'This statute is directed against such persons, et cetera, as have unlawful possession of a 'body' of a deceased person. The section further refers to the 'body' as such 'corpse.' The terms 'body' and 'corpse' found in this statute do not include the remains of persons long buried and decomposed.'

Where a word or phrase has previously received a judicial construction in a related section of the code and there have been major revisions of the code by the General Assembly since that time, it will be presumed that the General Assembly had the intention to adopt the construction placed upon the word or phrase by the courts. Cf. Goehring v. Dillard, 145 Ohio St. 41, 60 N.E.2d 704.

As an aid in the construction of a statute, it is to be assumed or presumed that the legislature was acquainted with, and had in mind, the judicial construction of former statutes on the subject.

Accordingly, where words used in a statute have acquired a settled meaning through judicial interpretation and the same terms are used in a subsequent statute upon the same or an analogous subject, they are generally interpreted in the latter as in the former, where the object to which the words are applied, or the connection in which it stands, does not require it to be differently understood in the two statutes, or where a contrary intention of the legislature is not made clear by other qualifying or explanatory terms.

Since it may be presumed that the legislature knew the construction, long acquiesced in, which had been given by the courts to statute reenacted by the legislature, it may equally be presumed that the legislature intended to adopt the construction as well as the language of the prior enactment. It is, accordingly, a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction. This rule has been generally held to be persuasive and in some cases is even regarded as binding upon the courts.

The purpose of the General Assembly is a dominant factor in determining the meaning of any statutory legislation. There is no better key to a difficult problem of statutory construction than the law from which the challenged statute emerged. Remedial laws are to be interpreted in the light of previous experience and prior enactment. United States v. Congress of Industrial Organizations, 335 U.S. 106, 112, 113, 6, S.Ct. 1349, 1352, 1353, 92 L.Ed.2d 1849.

Reenactment of a statute creates a presumption of legislative adoption of previous judicial...